Mulberry Creek Bridge Removal

August 23, 2012

Major General (KS) Lee E. Tafanelli

Director

Kansas Division of Emergency Management

2800 SW Topeka Boulevard

Topeka, Kansas 66611-1287

Re:  Second Appeal–Clay County, PA ID 027-U2SPY-00, Mulberry Creek Bridge Removal, FEMA-1932-DR-KS, Project Worksheets (PWs) 364 and 366

Dear General Tafanelli:

This is in response to a letter from your office dated August 26, 2011, which transmitted the referenced second appeal on behalf of Clay County (Applicant).  The Applicant is appealing the Department of Homeland Security’s Federal Emergency Management Agency’s (FEMA) decision to deny $751,138 in funding for the replacement of two bridges.     

Background

Severe thunderstorms and torrential rains struck Clay County from June 7 through July 21, 2010.  As a result of the storm, two bridges sustained damage from floating debris, log jams, and high velocity water flowing down Mulberry Creek.  The Applicant removed the log jams and demolished both bridges before FEMA could inspect the damaged bridges.  Using a Cost Estimating Format (CEF) submitted by the Applicant, FEMA prepared PW 364 to replace a steel truss bridge located on 25^th Road.  The estimated cost to replace the bridge at current codes and standards totaled $326,983, including administrative costs.  FEMA also prepared PW 366 to replace a steel truss bridge located on Granite Road between 27^th and 26^th using a CEF estimate submitted by the Applicant.  The estimated cost, including administrative costs, to replace the bridge at current codes and standards is $424,155.  

FEMA reviewed the CEF estimates, as well as photographs of the damaged bridge, and determined that the replacement costs for both bridges was not reasonable.  Using RS Means 2010 to estimate the level of effort for various tasks involved to repair the damaged bridges, FEMA revised the Scope of Work (SOW) for PW 364 to only allow for the replacement of a destroyed guardrail and replacement of the damaged bottom member of the steel truss at an estimated cost of $5,443.  For PW 366, the SOW was revised to only allow lifting of the Granite Road Bridge from Mulberry Creek and construction of a reinforced concrete abutment and footing at an estimated cost of $20,733. 

Following the preparation of the PWs, FEMA performed an environmental and historic compliance review and determined that the bridges were built in 1910 and listed on the Kansas State Historical Society Historic Resources Inventory.  It was also determined that “while damaged, both bridges retained enough of their [structural] integrity to be potentially eligible for listing on the National Register of Historic Places.”  Based on the information gathered through the environmental and historic review process, FEMA determined that the Applicant’s action to demolish the bridges constituted an Intentional Adverse Effect under Section 110(k) of NHPA and the regulations promulgated by the Advisory Council on Historic Preservation (ACHP) to implement Section 106 of NHPA.  Therefore, FEMA determined the projects are not eligible for Public Assistance funding. 

The review cited 36 Code of Federal Regulations (CFR) §800.9(c)(1), Council review of section 106 compliance, Intentional adverse effects by applicants.  Section 110(k) of the NHPA “prohibits a Federal agency from granting a loan, loan guarantee, permit, license or other assistance to an applicant who, with intent to avoid the requirements of section 106, has intentionally significantly adversely affected a historic property to which the grant would relate, or having legal power to prevent it, has allowed such significant adverse effect to occur, unless the agency, after consultation with the Council, determines that circumstances justify granting such assistance despite the adverse effect created or permitted by the applicant…”

By a letter dated December 7, 2010, FEMA initiated consultation with the Kansas Historical Society’s State Historic Preservation Officer (SHPO) as required under Section 106 of the NHPA.  FEMA provided the SHPO with appropriate documentation including an aerial photograph, a topographic map, and photographs of the two damaged bridges.  FEMA requested SHPO concurrence with its determination that prior to their demolition both bridges retained sufficient integrity to be potentially eligible for the National Register of Historic Places and found that their demolition in advance of SHPO consultation represented an Intentional Adverse Effect.  In a letter dated December 7, 2010, the SHPO concurred with FEMA’s determinations that the two truss bridges were potentially eligible for listing in the National Register of Historic Places prior to their demolition, and it also agreed with FEMA’s determination of Intentional Adverse Effect.  On December 20, 2010, the Kansas Division of Emergency Management (State) informed the Applicant of FEMA’s ineligibility decision.

First Appeal

The State forwarded the Applicant’s first appeal to FEMA on January 25, 2011.  The Applicant stated that both bridges were removed as emergency protective measures to prevent additional flooding damage to residential homes, property, and roads.  The State supported the first appeal indicating that the Applicant’s actions were reasonable given the emergency situation and that the Applicant was not attempting to avoid Federal or State historic preservation requirements.  On August 9, 2011, the FEMA Region VII Regional Administrator denied the first appeal stating that the Applicant failed to comply with ACHP regulations by failing to notify FEMA and the SHPO that the historic structures would be demolished.  The Regional Administrator stated that although 36 CFR §800.12, Emergency situation, contains provisions for emergency protective measures, the exemption “applies only to undertakings that will be implemented within 30 days after the disaster or emergency has been formally declared by the appropriate authority.”  The Applicant did not provide documentation to support that the bridges were removed within this time frame.  The response also stated that because the bridges were removed prior to a Federal site inspection, FEMA was unable to determine whether the structures were eligible for replacement as provided in 44 CFR §206.226(f), Restoration of damaged facilities, Repair vs. replacement, as the impacts could not be validated.

Second Appeal

The Applicant submitted a second appeal in a letter dated August 22, 2011, which the State forwarded to FEMA on August 26, 2011.  The Applicant reiterates its first appeal argument that the bridges were removed as an emergency protective measure.  The Applicant questions why FEMA wrote PWs and then revised the scopes of work if FEMA deemed the projects to be ineligible for Public Assistance funding.

Discussion

Section 403 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act authorizes assistance for emergency protective measures to lessen or eliminate immediate threats to life and property resulting from a major disaster.  The Applicant removed log jams that accumulated under the two bridges.  FEMA reimbursed the Applicant for emergency work in the amount of $15,479 under PW 365 for Category B, Emergency Protective Measures, which included costs to remove the log jams under the two damaged bridges.

FEMA prepared PWs 364 and 366 using CEF estimates for bridge replacement costs under Category C, Roads and Bridges, which is permanent restoration work, and later revised the two PWs to allow only for costs associated with bridge repairs.  It is FEMA’s procedure to prepare PWs in order to document disaster related damage identified by an applicant.  PW development does not constitute approval for Public Assistance funding.  FEMA determines project eligibility after completion of Federal and Agency regulation and policy reviews, which include ensuring compliance with environmental and historic preservation laws and regulations. 

Section 106 of NHPA requires that Federal agencies take into account the effects a project will have on historic resources and to allow the SHPO the opportunity to comment on the effects of a project.  Section 106 of NHPA requires FEMA to proceed with funding a project only after completing the historic review process.  Section 106 of the NHPA states:

“The head of any Federal agency having direct or indirect jurisdiction over a proposed Federal or federally assisted undertaking in any State and the head of any Federal department or independent agency having authority to license any undertaking shall, prior to the approval of the expenditure of any Federal funds on the undertaking or prior to the

issuance of any license, as the case may be, take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register. The head of any such Federal agency shall afford the Advisory Council on Historic Preservation established under Title II of this Act a reasonable opportunity to comment with regard to such undertaking.”

In accordance with Section 106 of the National Historic Preservation Act, FEMA must evaluate the impact of a proposed project before approving grant funding to ensure that historic properties are adequately considered in the decision-making process.  Applicants must afford FEMA the opportunity to satisfy these requirements before proceeding with the actual work.   The Applicant did not comply with these requirements.  By demolishing the two bridges, FEMA did not have an opportunity to perform the necessary historic preservation review in consultation with the SHPO as required by statute and regulations.  Furthermore, because the bridges were removed prior to a FEMA site inspection, FEMA was unable to determine whether the structures were eligible for replacement as provided in 44 CFR 206.226(f), Restoration of damaged facilities, Repair vs. replacement.  Therefore, the work is not eligible for Public Assistance funding.

Conclusion

I have reviewed the information submitted with the appeal and have determined that the Regional Administrator’s decision is consistent with Public Assistance regulations and policies.  Accordingly, I am denying the Applicant’s second appeal.

Please inform the Applicant of my decision.  This determination is the final decision on this matter pursuant to 44 CFR §206.206, Appeals.

Sincerely,

/s/

Deborah Ingram

Assistant Administrator

Recovery Directorate

cc:  Beth Freeman

       Regional Administrator
       FEMA Region VII